Education and Special Education Case Decisions

Reading opinions written by hearing officers and judges can be helpful. So can reading about those opinions. The more you as a parent know about education law, the better you will be able to advocate for your child at school. But be careful! Those opinions are based on the specific facts presented to the hearing officer or court in each case. It can be difficult to determine how a judge's decision on one set of facts may apply to a completely different set of facts. Many other difficulties may come into play in interpreting a particular decision or set of decisions. So it's best to check with a lawyer on the law and how it may affect you and your child.

Here are some questions in education law presented to a hearing officer and the U.S. Supreme Court in selected cases - and how the hearing officer and justices dealt with those questions under the particular facts at issue in each case.

MEMORANDUM AND INTERIM ORDER OF THE HEARING OFFICER RE: THE SCHOOL DISTRICT'S MOTION TO LIMIT THE RELEVANT TIME PERIOD AND SCOPE OF THE DUE PROCESS HEARING REGARDING PARENTS' CLAIMS

Dated: April 13, 2010 Cathy A. Skidmore, Esq., Hearing Officer

I. Introduction

In a letter dated March 3, 2010, the School District (District) renewed its previously filed motion to limit the parents' claims in this case to the two-year period immediately preceding the filing of the due process complaint. The parents' complaint was filed on May 19, 2009 and claimed that the District denied a free, appropriate public education to (Student) from the beginning of the 2006-07 school year. The complaint was dismissed on June 18, 2009. On February 16, 2010, the case was remanded by the U.S. District Court for the Eastern District of Pennsylvania for a hearing, and was subsequently assigned to this hearing officer.

On March 15, 2010, a hearing was convened limited to the issue of whether the statute of limitations would operate to preclude the parents' claims prior to May 19, 2007. 1 The parents contend that the statute of limitations is tolled under both of the exceptions set forth in the Individuals with Disabilities Education Act (IDEA) 2 and its implementing regulations, and further because the District's actions involve continuing violations of the IDEA. The District contends that the parents have failed to meet their burden of proving the existence of either exception to the IDEA statute of limitations and that the continuing violation doctrine does not operate to extend the limitations period.

1 The parents presented testimony and introduced Parent Exhibits (P) 1, 14, 16, 19, 20, 23, and 31. The School District presented no testimony but introduced School District Exhibits (S) 7, 10, 11, 12, and 17.

2 20 U.S.C. §§ 1401 et seq.

II. The IDEA Time Limitation

The IDEA expressly provides that parties must be afforded the opportunity to file a due process complaint alleging "a violation that occurred not more than two years before the date the parent or public agency knew or should have known of the alleged action which forms the basis of the complaint." 20 U.S.C. §1415(b)(6)(B); see also 34 C.F.R. § 300.507(a)(2). In other words, a party "must request an impartial due process hearing on their due process complaint within two years of the date the parent or public agency knew or should have known about the alleged action which forms the basis of the complaint." 20 U.S.C. § 1415(f)(3)(c); see also 34 C.F.R. § 300.511(e). Hearing officers must "make determinations, on a case bycase basis, of factors affecting whether the parent 'knew or should have known' about the action that is the basis of the complaint." J.L. v. Ambridge Area School District, 622 F.Supp.2d 257, 266 (W.D. Pa. 2008) (quoting 71 F.R. § 46540-01 at 46706 (August 14, 2006). This is a "highly factual inquiry." Id.

Nevertheless, the IDEA also provides for two specific exceptions to the two-year limitation period, permitting claims beyond that timeframe to a parent who was prevented from requesting the hearing as a result of:

(i) specific misrepresentations by the local educational agency that it had resolved the problem forming the basis of the complaint; or

(ii) the local education agency's withholding of information from the parent that was required under this subchapter to be provided to the parent. 20 U.S.C. § 1415(f)(3)(D); see also 34 C.F.R. § 300.511(f). The burden is on the parent to establish that one of the exceptions applies, which similarly requires a "highly factual inquiry to determination if application of either exception is warranted." J.L. v. Ambridge Area School District, 2009 WL 1119608 (W.D.Pa. April 27, 2009) at *4.4

III. Relevant Factual Background

Student attended school in Baltimore, Maryland until the parents were awarded custody and he moved to Pennsylvania in June 2006. (Notes of Testimony (N.T.) at 22-27; School District Exhibit (S) 7) In Baltimore, Student had been placed in a special education program which addressed identified specific learning disabilities in reading and mathematics. (Parent Exhibit (P 1) After Student moved to Pennsylvania, the family 3 contacted the District and arranged for Student's records to be retrieved from Baltimore, including an Educational Assessment from November 2005 which detailed, among other things, Student's then-current and previous educational evaluations and testing. (N.T. 28-30; P 1) Student was enrolled in the District for the start of the 2006-07 school year. (N.T. 32) An Individualized Education Program (IEP) was developed to address Student's specific learning disabilities and the parents approved the Notice of Recommended Educational Placement (NOREP). (P 14, P 16) The family became concerned with Student's behavior and limited educational progress during the fall of 2006 and conveyed those concerns to the District. (N.T. 33-38) The family expressed similar concerns to the District during the spring of 2007, throughout the fall of 2007, and during the spring of 2008. (N.T. 38-43, 46-47, 48-50, 52-57)

3 Student's family includes the parents' son who was very active in Student's life including his education, and who participated in his educational programming throughout his enrollment in the District. The term "family" is used in this opinion to include the son where that term is more accurate. The term "parents" is used as appropriate, and particularly when reference is made to the actual parties in this case.

Student's family took Student for testing at a Lindamood-Bell learning center in March 2007. (N.T. 50-51; P 19) A letter dated March 20, 2007 from the Lindanmood-Bell learning center summarized the results of that testing and made specific recommendations to address Student's weaknesses in reading and mathematics. (P 19) The family believed that the results of 5 that testing contradicted the District's reports of Student's ability and progress. (N.T. 51) In the spring of 2008, the family asked the District to place Student at the Lindamood-Bell learning center but the District did not agree to do so. (N.T. 58) Student did not attend school in the District during the 2008-09 school year. (N.T. 58)

IV. Application of the IDEA Statute of Limitations

The parents first contend that they did not know the basis of their claim against the District until March 2007 when the family took Student for the independent testing at the Lindamood-Bell center, arguing that they lacked confirmation of their concerns about the appropriateness of Student's education until they obtained that professional assessment. Thus, they claim that they did not know, and had no reason to know, of the basis for their complaint against the District before the March 2007 testing, so the statute of limitations did not begin to run until that time. The District asserts that the parents had knowledge of all relevant events as they were occurring.

In this case, unlike in Draper v. Atlanta Independent School System, 518 F.3d 1275 (11th Cir. 2008), where the family did not have sufficient facts necessary to know of the child's misdiagnosis and the precise nature of the disability, the parents here have not established such a lack of knowledge. On the contrary, the record reveals that the family was well-informed about Student's educational history and whether the District could meet his specific needs, conveying their concerns about his programming from the very beginning of Student's enrollment in the District and continuing through the fall of 2006. (N.T. 27-28, 31-35, 36-44, 71-75, 105, 109-111) Those concerns were not at all alleviated as Student began the second semester of the 2006-07 school year. (N.T. 39-43, 111). Consequently, the family had Student independently 6 evaluated in March 2007, and they obtained results which they believed confirmed their suspicions about the inadequacy of Student's educational program. (N.T. 50-51, 69-70; P 19) Even accepting the argument that the parents did not have the requisite knowledge of the basis for their complaint against the District until the Lindamood-Bell evaluation, I am compelled to conclude that March 20, 2007, when the results of that independent testing were provided to them, is the latest date that the family knew or should have known of the District's actions on which the complaint is based. Accordingly, the parents had two years from that date to timely file their complaint, or until March 20, 2009, but they did not do so until May 19, 2009. Thus, the parents are precluded from asserting claims involving the time period prior to May 19, 2007 unless one of the enumerated exceptions to the statute of limitations applies.

I must also reject the claim that the "continuing violation" doctrine tolls the statute of limitations. The authority cited by the parents, while certainly relevant, encompasses cases from other jurisdictions and those which pre-date the current version of the IDEA. Recent caselaw in this jurisdiction has held that the continuous violation doctrine is not applicable to the IDEA and that only the specific exceptions set forth in the statute may extend the limitations period. See, e.g., J.L., supra, 622 F.Supp. at 268-69; Evan H. v. Unionville-Chadds Ford School District, 2008 WL 4791634 (E.D. Pa. Nov. 4, 2008) at *5. In accordance with that caselaw, I find that the continuing violation doctrine is not available in this case.

The next consideration is whether either of the exceptions to the two-year period in the statute applies. The parents assert that the District made continuous misrepresentations about Student's educational progress, or lack of educational progress, and further failed to inform them that their claims could be barred by the statute of limitations. The District, on the other hand, 7 contends that any misrepresentation must be intentional and, in any event, could not have prevented the parents from requesting a due process hearing in this case.

There are cases within this jurisdiction which have held that a misrepresentation must be intentional in order to serve as an exception to the IDEA statute of limitations. Evan H., supra, at *6 (stating that the parents must establish that "the District subjectively determined that the student was eligible for services under the IDEA but intentionally misrepresented this fact to the parents."); see also School District of Philadelphia v. Deborah H., 2009 WL 778321 (E.D.Pa. March 24, 2009) at *4. By contrast, at least one other Federal District Court case within the Third Circuit has opined that a negligent misrepresentation can satisfy this exception. J.L. v. Ambridge Area School District, 2009 WL 1119608 (W.D.Pa. April 27, 2009) at *12. The IDEA does not specify what type of misrepresentation is required to invoke the exception, and the federal regulations specifically leave that determination to the discretion of the hearing officer. 71 F.R. § 46706 (August 12, 2006). As did the J.L. Court, having considered "the stated purposes of the IDEA to ensure that a child receives an appropriate education, and the remedial nature of the statute," id. at *12, I conclude that a misrepresentation need not be intentional for purposes of this exception of the IDEA statute of limitations. In negligent misrepresentation, the speaker "need not know his or her words are untrue, but must have failed to make a reasonable investigation of the truth of these words." Id. at *12.

testified extensively to his discussions with the District over the fall of 2006 and the spring of 2007. He stated that the District advised the family that Student "was well on his way to making the progress he needs to make," (N.T. 37), and that Student achieved "extremely high grades" on report cards despite an inability to correctly complete homework assignments at home. (N.T. 39-40) Mr. also testified that the District advised that 8 Student would continue to improve in reading with the existing program and that Student was "doing great." (N.T. 40, 53, 72, 73-74, 76-82) He explained that Student's test scores and report card grades indicated he was performing well at school, but by the spring of 2007, Student seemed to be "getting credit for work that was not even correct." (N.T. 42, 49) Mr. also testified that the family subsequently learned that the District's positive reports of Student's achievement were untrue. (N.T. 49-51, 75-77) This testimony as a whole was credible, was supported by that of Student's parents (N.T.100-01, 105-06, 110), and, not insignificantly, was uncontradicted by any testimony on the part of the District.

Based on the existing record and the foregoing discussion, I find that the evidence presented by the parents is sufficient to establish that the District made representations of Student's progress and achievement throughout the 2006-07 school year, including the time period prior to May 19, 2007, which assured the parents that Student was making appropriate educational progress and that the family's concerns had been and were being addressed. I also find sufficient uncontradicted evidence from which to conclude at this juncture that there were specific representations made by the District regarding Student's progress, including his grades, which were not wholly accurate and/or lacked reasonable investigation of the truth of those statements. 4 Further, although the District elicited evidence that the parents were provided with their procedural safeguard notices as required under the IDEA (N.T. 62-64, 112-15; S 10, 11), the uncontradicted testimony was that the District also informed the parents that the law did not provide them with "options" and that the District had to be given time to address any deficiencies in Student's program, and that those representations prevented the parents from requesting a due

4 I note that this inquiry is distinct from the earlier discussion of when the parents knew or should have known of the actions which formed the basis for their complaint against the District. The plain statutory language governing the time for filing a due process complaint and the exceptions thereto require separate and different analyses.

9 process hearing at the time. (N.T. 38-39, 43-44, 48-49) Accordingly, I find that the parents have established the misrepresentation exception to the statute of limitations in this case which will permit them to raise claims prior to May 19, 2007.

Lastly, to the extent it is necessary to independently address the second exception to the statute of limitations related to the withholding of information required to be provided, I find that the record as a whole fails to establish the applicability of this exception. (N.T. 62-64, 112-15; S 10, 11)

IV. Conclusion

The District's motion to limit the relevant time period and scope of the due process hearing in this matter is denied. The parents will be permitted to present substantive evidence on their claims against the District for the entire time period claimed in the complaint, specifically from the beginning of the 2006-07 school year through the end of the 2008-09 school year.

_____________________________

Cathy A. Skidmore, Hearing Officer, April 13, 2010

The Forest Grove and Safford United Decisions

Question: Can a school district be required to reimburse parents for the cost of placing their disabled child in a private school, even though the student never received special education services from the district?

Answer: Yes, under the circumstances presented in this case..

Question: Can a school district or its employees be held liable for violating the Fourth Amendment right of a 13-year-old student to be free from an "unreasonable search" when they required her to strip down to her underwear and expose her intimate areas to inspection because they believed she may be concealing prescription drugs that she reportedly was giving to other students?

Answer: Yes. The court found that the search violated the student's Fourth Amendment rights. However, it held that the individual school officials involved in this specific search were legally "immune" to liability because the law governing the limits of such searches by school officials was unclear at the time they performed the search (in 2003), and it remanded the case to the lower court to determine whether the school district itself could be held liable for the violation of the student's Constitutional rights by the school officials.

Nutshell: The U.S. Supreme Court's answer to the first question is loud and clear. It ruled in Forest Grove School Dist. v. T.A. that under the Individuals with Disabilities Education Act (the "IDEA") a school district may be required to reimburse parents for the cost of placing their disabled child in an appropriate private school, even though the child had been found ineligible for special education by the school district and never had an IEP. The student in Forest Grove attended the public school for almost 11 years before his parents removed him and placed him in a private school equipped to deal with his ADHD and learning disabilities. During that time, the school district evaluated the struggling student and found him ineligible for special education. The Supreme Court rejected the district's argument that new language added by Congress to the IDEA in 1997 barred parents of disabled children from obtaining private school reimbursement, if their child had not previously received special education services at school.

Second, in Safford Unified Sch. Dist. #1 v. Redding, the Supreme Court upheld the Fourth Amendment right of the middle school student involved there to be free from an "unreasonable search." The court found that an assistant principal had a "reasonable suspicion" that the girl in question was distributing prohibited, prescription drugs at school, based in part on the report of another student and the discovery of four prescription-strength ibuprofen and one over-the-counter naproxen pill in a planner owned by the student. This suspicion justified searching the student's backpack and outer clothing for drugs, according to the court. But the court held that the administrator's knowledge of the type of drugs and the limited quantity likely to be involved, the limited threat presented to other students, and the lack of specific information indicating the student was concealing drugs in her underwear, did not support a strip search of the child under the legal standard required by the Fourth Amendment. Although the court further held that the assistant principal and two other involved school staff had "qualified immunity" to a lawsuit under these circumstances, it remanded the case to the federal district court to determine whether the school district itself could be held liable for the unconstitutional acts of its officials.

The Details

The Forest Grove Decision

Facts

Every special education "case" tells a story. Ever since kindergarten, a student in Oregon struggled with paying attention in class and doing his homework. Over the years, his problems worsened. At his parents' request, the school conducted an evaluation during the student's ninth grade year to determine if he had a disability that would qualify him for special education and related services under the "IDEA." When the evaluation was completed, the psychologist and other school personnel held a meeting with the boy's mother, in which all agreed that the student did not qualify for special education. With much help from his parents, the boy completed his sophomore year, but his problems worsened during his junior year. In March of that year, the parents retained a private evaluator, who diagnosed the student with ADHD and learning disabilities and recommended placement in a structured, residential learning environment. Four days after placing their child in a private academy for special needs children, the parents hired a lawyer to notify the district of the action taken. In April, they requested an administrative due process hearing. In July, the school evaluated the student again, concluding that his ADHD did not have a big enough impact on his educational performance to qualify him for special education under the IDEA. The parents pressed on with "due process" under the IDEA, seeking reimbursement of the cost of placing their child in the private school.

Path to the Supreme Court

After hearing testimony from expert witnesses and others, the hearing officer found that the student's ADHD interfered with his educational performance and that the school's failure to find the student eligible for special education violated the IDEA. The hearing officer therefore ordered the district to reimburse the parents for the cost of the private school tuition. On appeal, a federal judge set aside the hearing officer's decision, citing language in the IDEA limiting reimbursement of private school tuition to disabled children "who previously received special education and related services." On further appeal, a federal "circuit" court reversed the district court's decision, focusing on different language in the IDEA, which states that in any action brought under the IDEA, a court "shall grant such relief as the court determines is appropriate," and on prior Supreme Court decisions in Burlington Sch. Committee v. Massachusetts Dept. of Educationand Florence County Sch. Dist. Four v. Shannon Carter that interpreted this language to give judges broad power to grant relief in IDEA cases, including private school tuition reimbursement. The school district's appeal to the Supreme Court followed.

Supreme Court's Analysis

Judges often must decide close questions dealing with how to interpret a law passed by Congress. Here, the Supreme Court was required to determine what Congress meant when it added certain language to the IDEA in 1997 that could be read to limit a parent's right to recover reimbursement of private school tuition from a school district. That new language reads in part: "If the parents of a child with a disability, who previously received special education and related services ... " enroll their child in a private school without the district's consent, a court or hearing officer "may require" the district to reimburse the parents for the cost of that enrollment "if the court or hearing officer finds that the agency had not made a free appropriate public education available to the child in a timely manner prior to that enrollment." (Emphasis added). But, as indicated, there is other language in the Act that broadly authorizes a court to "grant such relief as [it] determines is appropriate."

So did Congress intend to limit this broad grant of authority to judges when it amended the IDEA and included the new language in 1997? That is the question the court needed to answer. A majority of six justices on the Supreme Court, in an opinion written by Justice Stevens, held that the parents of the Oregon student were entitled to receive private school tuition reimbursement under the IDEA, even though their son had never received special education services. They reasoned that if Congress really intended to prevent parents from recovering private school tuition reimbursement for disabled children who had never received special education services from the public school district, it could have said so in the Act in clear and unmistakable language. The language it added in the new private school reimbursement section of the 1997 amendments to the IDEA (quoted in boldface above) could be interpreted in different ways, in this view, and therefore was not clear enough to meet the high standard required.

The court further reasoned that Congress could not have intended to empower school districts to avoid liability for private school cost reimbursement to parents by the simple expedient of finding a disabled student ineligible for special education. According to the court, this would undermine IDEA's primary purpose of providing eligible, disabled children with the special education they need.

Writing for the dissent, the now-retired Justice Souter found that the language added by Congress in 1997 limiting private school tuition reimburse to students "who previously received special education and related services" is a clear statement of Congress' intent to enforce this limitation.

Personally, we think Justice Souter made a very strong argument, and we are surprised that the two conservative justices on the court, Chief Justice Roberts and Justice Alito, did not join with him, which would have resulted in a 5/4 decision in favor of the school district. Effect of Forest Grove It can be difficult to predict how broadly a Supreme Court decision will be applied in future cases. Certainly, the Forest Grove decision will mean that a parent will not be disqualified from recovering private school tuition reimbursement from a schooldistrict merely because the district evaluated the student and found the student to be ineligible for special education. In such cases, parents may choose to unilaterally withdraw the student from the district, after notifying the district of their intention, place the student in a private school, and seek reimbursement from the district for the cost of the placement.

But remember that winning such cases is not easy. A parent must still prove that (1) the district improperly denied the student a "free appropriate public education" under the IDEA, (2) the private school is an appropriate placement for the student, and (3) fairness favors reimbursing the parent for the cost of the private school placement. We think the first and third "elements" of the required proof will tend to limit the scope of the Forest Grove decision. So, for example, we think parents who never request the district to evaluate their special needs child, remove her from the public school, and place her in a private school, will face an uphill battle in recovering tuition reimbursement because they may be found to have acted "unfairly" in not "cooperating" with the school district. An even harder case, in our view, would be one in which parents remove their disabled child from a private school, such as a Catholic school, place him in a different private school where his special needs can be addressed, and then seek reimbursement from the local public school district.

Parents must remember that in a tuition reimbursement case their claim for reimbursement can be reduced or denied, if they are perceived by the hearing officer or judge as having failed to cooperate with the school district or as having treated the district unfairly. In these cases - and in nearly all special education cases - we advise our clients to "ride the white horse." We want judges to want to find in our clients' favor.

The Safford United Decision

Facts

In October 2003, Savana Redding was a 13-year-old student at Safford Middle School west of Phoenix, Arizona. An assistant principal, Kerry Wilson, summoned Savanna to his office, there showing her an open, unzipped day planner containing several knives, lighters, a permanent marker, and a cigarette. Savana admitted owning the day planner, but stated that she had lent it to a friend a few days earlier and did not own the items inside it. Wilson then showed Savana four white prescription-strength ibuprofen and one over-the-counter naproxen pill. These pills used for pain and inflammation were banned under school rules, without prior permission. Wilson told Savanna that he had received a report that she was giving these pills to other students. Savana denied knowing anything about the pills or giving them to other students. With Savana's permission, Wilson and an administrative assistant searched her backpack, finding nothing. At that point, Wilson instructed the assistant to take Savana to the school nurse's office to search her clothes for pills. The assistant and the nurse asked Savana to remove her jacket, socks and shoes, leaving her in stretch pants and a T-shirt, which she was then asked to remove. Finally, they told Savana to pull her bra out and to the side and shake it, and to pull out the elastic on her underpants, thus exposing her breasts and pelvic area. No pills were found.

Supreme Court's Decision

The legal question presented to the Supreme Court was whether the 13-year-old student's Fourth Amendment right to be free from an unreasonable search was violated by the search of her bra and underpants by school officials acting on suspicion that she was giving prescription drugs to other students. The Fourth Amendment to the Constitution protects the "right of the people to be secure ... against unreasonable searches and seizures ..."

As interpreted by the Supreme Court, this Amendment prevents a police officer, for example, from searching a person without "probable cause"; that is, without a reasonable knowledge that the individual being searched may be committing a crime or had committed a crime. Because school officials have a special responsibility to protect from harm the students in their care, courts have held that they do not have to meet the high "probable cause" standard that applies to a police officer searching a suspected robber on the street. Instead, the Supreme Court has interpreted the Fourth Amendment to require only a "reasonable suspicion" by a school official that a crime or a violation of school rules is being or has been committed in order to perform a search of a student or her possessions. The standard the court developed for the school setting asks whether the search was "reasonably related" to the school officials' objectives and "not excessively intrusive in light of the age and sex of the student and the nature of the infraction."

Applying this standard, the court held that the search of Savana Redding violated the Fourth Amendment. On the day of the search, a friend of Savana's had been found in possession of the "planner" that Savana later admitted she had lent to her friend. Shortly before that day, another student had told the principal that Savana and other students had given prescription pills to other students at school. The court ruled that this and other relevant information that was reported to the assistant principal was sufficient to create a "reasonable suspicion" that Savana was violating a valid school rule prohibiting such pills and to justify a search of her outer clothing and backpack. But the court found that the type, quantity and strength of the prescription drugs involved, the relatively lower safety threat that these pills presented to the other students, the absence of any reports or information indicating that Savana was hiding the drugs in her underwear, and the student's young age, were factors indicating that the search of her underwear was unreasonable and excessively intrusive, in violation of the Fourth Amendment. But the law is a thicket sometimes!

Did the court find the assistant principal and the other school officials individually liable for violating Savana's Fourth Amendment rights? No. It held that those officials had "qualified immunity" protecting them against liability here because under the law existing at the time of the search in 2003 it wasn't clear that the search was illegal. In other words, the school officials couldn't have reasonably known at that time that they were doing something wrong.

Nor did the court hold the school district itself liable to Savana and her parent. Under governing law, in a "civil rights" case like this one an agency cannot automatically be held liable merely because it is the employer of someone who violated a person's civil rights. Instead, there must be proof that the alleged wrongdoer - primarily the assistant principal in this case - was acting in accordance with the agency's official policy or custom when he performed the search in question. The Supreme Court decided that this decision was better left to the lower court, which could hear additional facts on this issue and make a ruling on whether the school district itself was liable to Savana Redding and her parent for damages. So the parties here will have still another "day in court," unless they "settle" the case between themselves.

Effect of the SaffordUnitedDecision

The Safford United decision serves as a welcome reminder to school districts that there are limits under the Fourth Amendment on how far they can go in searching a student and that an excessively intrusive search potentially can result in liability for school officials individually and for the school district itself. But it must be read in light of the particular circumstances surrounding the search of Savana Redding. Every search involves different facts. A school official sometimes can be required to make close judgments on an urgent basis in balancing the right of an individual student to be free from an "unreasonable" search against the official's responsibility to protect other students in her charge. Generally, courts give school officials a fair amount of leeway in making these decisions, especially in this post-Columbine, post-Virginia Tech era. Nevertheless, the Safford United decision demonstrates that the more intrusive the search, the closer the courts will scrutinize them under the Fourth Amendment and the greater the potential for a school district and its officials to be held liable. Questions? Comments? We like to think about - and discuss - the law. That's part of the reason we're lawyers!

In brief, the Court held in Schaffer that parents must bear the "burden of proof" if they file a due process action against a school district. The Court held in Murphy that school districts cannot be required to reimburse parents for their expert witness fees in a successful due process action against the school district. Both cases changed existing practices in Pennsylvania. Before these decisions, Pennsylvania school districts bore the "burden of proof" in a due process case, regardless of whether the parent or the district initiated the suit, and successful parents were eligibile for reimbursement of their expert witness fees in a due process action from the school district. So both decisions represented a step backward for the legal rights of parents of special needs children.

THE MURPHY CASE

Background

Joe Murphy was an 8 th grade student in upstate New York in September 1997. [1] He suffered from what a neuropsychologist described as a “near-total incapacity to process language.” A speech language evaluator for the school district concluded that Joe was academically and emotionally at “high-risk,” and recommended placement in a residential program for language-impaired students. Joe’s parents hired an educational consultant, Marilyn Arons, to review Joe’s evaluations, perform her own assessment, attend IEP meetings, and meet with district officials to urge a more intensive speech/language placement. When the district refused, Joe’s parents placed him in the Kildonan School, a private school for learning disabled students. They also filed for due process seeking to establish that Kildonan was an appropriate placement and to force the district to reimburse them for the tuition. The Murphy’s did not retain a lawyer to represent them. However, Ms. Arons continued to advise them in her capacity as a special education consultant, including assisting in reviewing Joe’s educational evaluations, preparing questions for the district’s experts, and preparing their case.

The Murphy’s ultimately prevailed in their suit. The hearing officer found that the public high school placement proposed by the district was not appropriate, that Kildonan was appropriate, and that the district must reimburse the parents for tuition incurred during the 1999-2000 school year. During the appeal process, first before the State Review Officer, and then in federal district and appeals courts, it was determined that the district was liable not only for reimbursement of the past year’s tuition, but also for payment of tuition at Kildonan going forward.

The Murphy's prevailed in the litigation. Thereafter, they filed a motion in federal courty ” filed a motion in the federal district court seeking reimbursement for the expert services provided by Ms. Arons under the Individuals with Disabilities Education Act (IDEA). Although the district court found that Ms. Arons was qualified as an expert and entitled to reimbursement for the services she provided to the Murphy’s, the court reduced the amount sought from $29,350 to $8,650 based on its finding that only the services she provided after the due process petition was filed and before a key ruling by the district court was entered in their favor were compensable under the IDEA. The school district appealed the award of expert fees to the United States Court of Appeal for the Second Circuit, where it was affirmed. That decision led to the district’s appeal to the Supreme Court.

The Decision

The issue presented on appeal to the Supreme Court was whether Ms. Aron's expert fee was a "cost" that was recoverable from the state under an IDEA provision permitting an “award [of] reasonable attorney fees as part of the costs” to prevailing parents. In other words, the question was, “What does the word “costs” mean, as used in the statute? Does it include expert fees?

Justice Samuel Alito, the most recent Bush nominee to the Supreme Court, wrote the opinion for the majority. He wrote that expert fees are not part of reimbursable “costs” under the IDEA. He reasoned that for legislation like the IDEA, enacted under the Spending Clause of the Constitution, only an unambiguous statement of responsibility for reimbursement of expert fees would be sufficient to give states the required “notice” that they would be liable for such costs if they accepted special education funds from the federal government. He concluded that the word, “costs,” in the IDEA was not sufficiently clear to include expert fees.

Justice Stephen Breyer, in his dissenting opinion, asserted that the word, “costs,” in the IDEA included reimbursement for expert fees. First, he asserted that this is what Congress intended, as demonstrated by the Conference Report Congress approved when it enacted the IDEA in 1986. That Conference Report stated that “the term ‘attorneys’ fees as part of the costs’ include[s] reasonable expenses of expert witnesses and reasonable costs of any test or evaluation which is found to be necessary for the preparation of the parent or guardian’s case in the action or proceeding.” Second, he asserted that interpreting “costs” to include expert fees is consistent with the IDEA’s purpose to guarantee a “free” and “appropriate” public education for “all” children with disabilities. If parents are unable to recover essential experts’ fees under IDEA, he reasoned, the right to a free public education guaranteed by the Act is diminished.

Our Take on the Murphy Case: Justice Breyer’s dissenting opinion is persuasive. The legislative history of the IDEA at the time it was enacted in 1986 leaves little doubt that Congress intended for a parent who prevails in a due process proceeding to recover reasonable expert fees. “Justice,” at least under the IDEA, was not intended to be limited to only those parents who can pay for it. But there has been a change on this Supreme Court, with the addition of Chief Justice Roberts and Justice Alito. The Court generally is viewed as being more conservative. It is possible that the Court will take a more restrictive view of the rights of parents and children under the IDEA in the future.

THE SCHAFFER CASE

Background

Brian Schaffer was a 14-year-old boy with Down’s Syndrome when this case began in 1998. Brian had enrolled in the Montgomery County (Maryland) School District in the fall of 1997, having spent the previous seven years in a private residential school that could no longer meet his needs. The case is procedurally complex. In sum, on the parents’ challenge to the IEP proposed by the district, the hearing officer held that the evidence offered at the hearing was in “equipoise,” a fancy way of saying that it didn’t favor either side.

The issue presented to the Supreme Court was essentially this: Which party, the parents or the district, is the winner in an IDEA action where the evidence offered by one party is equal in weight to the evidence offered by the other? Lawyers refer to it as the question of which side has the “burden of proof,” or the responsibility to prove that its evidence “outweighs” the evidence offered by the other party. Put still another way, if there’s a “tie” in the evidence, who should win under the IDEA?

The Decision

The Supreme Court held, in a 6 to 2 opinion written by Justice O’Connor, that, in the absence of clear direction in the IDEA itself as to who should bear the burden of proof, the party seeking to challenge the IEP bears the burden of proof. The majority rejected the parents’ argument that assigning the burden or proof to school districts will further the IDEA’s purpose to help ensure that children receive a free appropriate public education, emphasizing that it is a rare case where, like this one, the evidence is found to be in “equipoise.” It also rejected the argument that placing the burden on the district to prove that its IEP provides FAPE is reasonable in light of the “natural advantage” enjoyed by the district in both information and knowledge. Justice O’Connor pointed to provisions of the IDEA requiring the district to produce the student’s educational records and noted Congress’ apparent belief that parents with “legitimate grievances” will prevail if the procedures specified in the Act are followed. Accordingly, the Court ruled against the parents.

Our Take on the Schaffer Case: The Court essentially placed litigants in special ed cases under the same rule governing the “burden of proof” as applies to litigants in most other kinds of cases: He who brings the lawsuit must prove his case. In a traffic accident, for example, the party bringing the action has the burden to prove that the driver of the other vehicle was at fault. Hence, the Court rejected the argument that parents of a disabled child are entitled to the special advantage that would result from placing the burden of proof on the school district in all cases. Since Schaffer, the practice in Pennsylvania therefore has changed: A parent challenging an IEP now must shoulder the burden of proof.

THE IMPACT OF SCHAFFER AND MURPHY

Neither case is good news for Pennsylvania parents of special education students. Though cases when the evidence is “tied” between the parent and the district are rare, hearing officers and courts still pay attention to who has the burden of proof in due process cases. Under prior law in Pennsylvania, the burden was on the district; now it is on the parent. In addition, though still unresolved in Pennsylvania due process cases, it appears likely that parents in these suits will be required to put on their case first, before the school district puts on its case and its witnesses. While many lawyers like the idea of putting our “side” of the case first, we recognize that some parents handling their own cases without counsel may be concerned about having to “lead off” at the hearing.

As to Murphy, it is a significant loss for parents to lose the right to recover what can be costly expert fees when they prevail in a due process case. So the Murphy case potentially increases the costs to parents of suing a school district while it decreases the amount that districts can be required to pay if they lose.

So what should you do? Full speed ahead! Time will tell whether school districts will be emboldened by these two decisions and take a harder line in dealing with parents. But our advice to parents is still the same: Follow the same principles that we talk about in these pages and that Pete and Pam Wright talk about at www.wrightslaw.com. Get organized. Learn about tests and measurements. Document important conversations. Prepare carefully for school meetings. Plan. Follow through. Learn more about your rights under the law. Retain a non-attorney education advocate (no fee, if possible) to help with your child’s IEP and attend school meetings with you. Be persistent, proactive, polite, positive, strong. Be an effective advocate.

If you ultimately must go to due process to get the services your child needs, then that is what you will do. Try to keep your expert witness charges as low as you reasonably can. In some cases, you may want to talk with your attorneys about whether they will share in those costs in some fair way. We are willing to have that discussion with you. In complex cases, where expert fees can amount to very substantial sums,ot $5,000 to $10,000 or more, you naturally will need to consider those costs, just as you will need to carefully evaluate every other aspect of your case before filing for due process. Know what you are getting into before you do it!

One more thing. Always remember what's at stake here. What is more important to you than your children’s education and future? The decisions in Schaffer and Murphy may make things a little tougher. But so what? It’s just one more challenge that you can and will meet because your child is counting on you to meet it.

So here is the message we urge you to take away from these two decisions: Be even more resolved! Be even more determined! With that attitude, nothing will stop you from getting the services your child needs.

Parents and advocates sometimes ask us about tape recording IEP meetings. They most often want to know if theyhave the legal right to do it. They sometimes ask if they should tape record the meetings. This article deals only with whether parents have the right to tape record IEP meetings in Pennsylvania. Next month, we will discuss some possible advantages and disadvantages of tape recording IEP meetings.

Introduction

Please keep several things in mind as you read this article.

First, sometimes the law is very clear in telling us what we can and can't do; sometimes it isn't. The traffic laws are pretty clear, for example. We know we can be given a ticket for speeding if we drive 80 miles per hour on a road with a posted speed limit of 55. We know there are clear penalties for speeding that are specified in the traffic laws (known as the "Pennsylvania Motor Vehicle Code").

Second, facts matter. In the speeding case we mentioned, what if we were going 80 mph because we were being chased by a motorist with road rage? Or what if we were transporting a friend to the hospital who had just suffered a heart attack? Would we still be penalized for speeding? Probably not. So the law oftentimes states general rules. But we know there can be exceptions to the rule.

Third, some kinds of "legal authority" are "better" or more "authoritative" than others. The first place we look to find out "what the law is" is to the law that the legislators enacted. We ask: "What does the statute say?" The second place we look is to the highest state or federal appellate court in our jurisdiction to see if they issued a written opinion in a case dealing with our issue under the same statute. Those courts have the power to say how a statute applies to a specific set of facts, for example. The written opinions they issue generally must be followed by the "lower" courts in their jurisdiction.

But what if the law passed by the legislators says nothing about the conduct that we are concerned about? And what if the highest state or federal courts in our jurisdiction haven't issued a written opinion that deals with our issue? How do we determine what the law is then? Answer: We do the best we can, based on whatever legal decisions and information are available. That is what we must do in trying to assess the parent's right to tape record IEP meetings.

Legal Authority for Taping IEP Meetings: Where It Is and Where It Ain't!

Let's be clear up front. First, there is nothing in the Individuals with Disabilities Education Act of 2004 ("IDEA 2004") that specifically tells us whether a parent can or cannot tape record an IEP meeting. The statute is totally "silent" on this specific issue. Second, the United States Supreme Court has never issued a written opinion telling us "what the law is" on this issue. Neither has the Pennsylvania Supreme Court nor the highest federal court in our jurisdiction, the United States Court of Appeals for the Third Circuit. In fact, to the best of our knowledge, no court in Pennsylvania has issued a written opinion to date that deals with this question.

So are we out of luck in trying to figure out whether a parent is legally entitled to tape record an IEP meeting in Pennsylvania? No! There are several sources of information that provide us with guidance on a parent's rights in this situation. On balance, these sources support the principlethat a parent generally does possess the legal right to tape record an IEP meeting.

The "Robert R." Decision

In 1996, a Pennsylvania Special Education Appeals Panel issued a written opinion that squarely dealt with the question whether a parent can tape record an IEP meeting. (Special Educ. Opinion No. 704). The special education appeals panels were part of the administrative law system set up by the Pennsylvania Department of Education. The department abolished the appeals panels effective July 1, 2008. Nevertheless, the panel's decision in Robert R. provides persuasive guidance on how a court might deal with this question. Therefore, it is important for any parent considering tape recording an IEP meeting to know about it.

What Happened in Robert R ?

The facts in Robert R. reveal a very persistent parent and a very determined school district. The parent had filed a complaint with the Bureau of Special Education challenging the school program for her fifth grade son. The bureau found that the district had failed to properly implement the student's IEP, and ordered the district to convene an IEP meeting to consider providing "compensatory education." When the mother arrived for the scheduled meeting in August 2005, she announced her intention to tape record the meeting. The district refused to permit tape recording of the meeting under a new written district policy banning tape recording of school board meetings and other meetings involving school personnel, and the parent refused to proceed with the meeting unless she could tape record it. The district then attempted to reconvene the IEP meeting on two subsequent occasions. Both times, the mother showed up with her trusty tape recorder in hand ready to tape record the meeting. At the third scheduled IEP meeting, the district's special education coordinator left the room, entered her office, closed the door, and conducted the IEP meeting outside the mother's presence.The mom thereafter refused to approve the IEP and filed for due process.

At the due process hearing, the parent contended that she had an absolute right to tape record the IEP meeting, regardless of any written policy of the school district banning such recording. The district argued that it had every right to hold the IEP meeting outside the parent's presence when she persisted in violating the district's policy against tape recording school personnel. After the hearing officer ruled in the parent's favor, the district filed an appeal with the special education appeals panel.

The "Three Legged Stool "

On appeal, the district asserted that its employees had a "privacy interest" in what they said at a meeting, which the mother was not entitled to violate by tape recording their comments. In addition, they argued that the mother had not given a good enough reason for the district to permit her to tape record the meeting. She had informed the district, in part, that she wanted to tape record the meeting so her 13-year-old son could listen to it later.

The district countered that under the law then in effect, the student was too young to insist upon attending the meeting so he had no right to hear what was said on tape. The appeals panel rejected the district's arguments, and found in favor of the parent's right to tape record the IEP meeting. The panel based its decision on three primary arguments. Here, in brief, is each "leg" of the"three-legged stool":

1. The IDEA and U.S. Supreme Court favor parental participation in the IEP meeting. The appeals panel stressed the IDEA's emphasis on parental participation in the IEP meeting as an important method for achieving its purpose of ensuring a free appropriate public education for children with disabilities. To advance this purpose, the IDEA (and Pennsylvania regulations) specifically require school authorities to satisfy strict requirements to notify parents of the meeting in advance and to ensure their participation. [The IDEA requirements are now found at 34 CFR § 300.322]. The panel also cited the United States Supreme Court for the principle that parental participation in the IEP process is necessary. In other words, these sources, according to the panel, weigh heavily in favor of ensuring that each parent should be able to participate fully in IEP meetings without interference by the school district.

2. Two Connecticut federal district court decisions uphold the parent's right to tape record an IEP meeting. The panel also relied heavily on the decisions of two Connecticut federal district courts that ruled in favor of a parent's right to tape record an IEP meeting. In the first case, E.H. v. Tirozzi, 735 F.Supp. 53 (D. Conn. 1990), a non-native speaking parent sought permission to tape record the IEP meeting as an aid to reviewing and understanding what was said. A teacher refused to be tape recorded on the grounds that it violated her right to privacy, and the district supported its teacher. The court upheld the parent's right to tape-record the IEP meeting on the grounds that the parent's statutory right to fully participate in the IEP meeting far outweighed the teacher's alleged right to refuse to be tape-recorded. In the second case, V.W. v. Fravolise, 131 F.R.D. 634 (D. Conn. 1990), the parent advised the school that he needed to tape-record the IEP meeting because an injury to his hand made note-taking difficult, and the district refused permission because tape recording the meeting allegedly would inhibit or "chill" the free flow of information at the meeting. The court rejected the district's argument on the grounds that it lacked any statutory authority to limit the parent's right to participate in the meeting.

3. An "OSEP" opinion permits tape recording of IEP meetings. "OSEP" is the Office of Special Education Programs, which is part of the U.S. Department of Education. It is empowered with interpreting the IDEA. It sometimes issues written opinions interpreting the IDEA, which are entitled to some weight, but they do not have the force of law. In 1992, OSEP opined that "[t]he use of tape recorders at IEP meetings is not addressed by either the [IDEA] or the [federal] regulations. Although taping is clearly not required, it is permissible at the option of either the parents or the agency." The Pennsylvania appeals panel gave more weight to this statement by OSEP than it did to a prior letter opinion in which OSEP stated that "[i]t would not be inconsistent with Federal privacy law for school districts to have a rule prohibiting the tape recording of IEP meetings, if the policy provided for exceptions when they are necessary to ensure that the parent understands the IEP or the IEP process or to implement other [guaranteed] parental rights ...."

None of these three sources of authority squarely compels a finding that the mother of Robert R. was entitled to tape record the IEP meeting. But the Pennsylvania appeals panel found them to be persuasive. It found that the mother had a statutory right to participate in the IEP meeting that far outweighed the district's alleged interest in preventing taping from becoming a "barrier to effective communication," as the district claimed. It noted, however, that its finding was "fact-specific." It explained that its decision was based, in part, on the mother's explanation that she sought to tape record the meeting to share it with her son. The panel suggested that if the tape recording were for a different purpose, such as to "use this recording as a legal weapon or shield, the analysis and results of this case might have been quite different." In sum, the Pennsylvania appeals panel ruled in Robert R. that the district's refusal to permit the mother to tape record the meeting, without legal authority, was a violation of the child's right to a free appropriate public education under the IDEA.

We know of only one other Pennsylvania appeals review panel decision dealing with the IEP tape-recording issue.In December 2006, a panel ruled, with little discussion, in a "gifted" case, that a school district was without authority to prevent the student's parents from audiotaping the GIEP meeting, "in the absence of a preexisting school district policy, properly adopted and uniformly imposed, that prohibited recording devices at IEP meetings ..." (Special Educ. Opinion No.1787).

So What's the "Bottom Line ?"

There is no clear, binding legal authority requiring a school district in Pennsylvania to permit a parent to tape record an IEP meeting. There is a 1996 Pennsylvania (administrative) appeals panel decision (Robert R.) that supports a parent's legal right to tape record an IEP meeting, at least where the parent asserts that the taping will facilitate an understanding of the proceedings or the achievement of a FAPE for the student. The opinion is based on a well-reasoned analysis of the IDEA, two federal district court opinions in Connecticut, and an opinion by the (federal) Office of Special Education Programs. There also is a 2006 appeals panel decision holding, with little discussion or explanation, that a district lacks authority to prevent a parent from tape recording a GIEP meeting in the absence of a preexisting, "uniformly imposed" school district policy prohibiting recording devices at IEP meetings. In part because "gifted" cases are not governed by the IDEA, however, we attach less significance to this appeals panel opinion.

On balance, we believe the law supports a parent's right to tape record an IEP meeting. The strongest case for upholding that right, in our view, would be one in which the parent offers a legitimate reason for recording the meeting. We can imagine many different circumstances under which recording the IEP meeting would serve a purpose that courts would recognize as legitimate.

A school district could choose to litigate the issue, of course, as West Shore S.D. and Haverford S.D. did in the two Pennsylvania appeals panel decisions discussed above. But we think most school districts would choose a more temperate course and allow the tape-recording. Choosing to allow such recording also would appear to be consistent with the information provided on this issue by Sweet Stevens Katz & Williams on their website. Sweet Stevens provides legal representation to school districts. In the article there on the tape recording of IEP meetings, attorney Jane Williams notes the relative ease with which parents likely could establish the need to tape record an IEP meeting to the satisfaction of a reviewing court, and states that the "downside of allowing taping, provided both sides tape or a duplicate is made, is small even though the tape may, in limited circumstances, be reviewed by an administrative hearing officer or judge." We agree with Ms. Williams on both points.

But assuming you have the legal right to tape record your next IEP meeting, is it a good idea? Should you do it? We believe this decision should be made only after careful consideration.

Questions? Comments? Want to do further research? Just call or email us.

P.S. Were you wondering if you could secretly tape record the IEP meeting? The answer is no, unless you are willing to take a chance on being found guilty of a third degree felony under the Pennsylvania Wiretapping and Electronic Surveillance Act, 18 Pa. C.S. § 5703.

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For more information about what’s new in Pennsylvania law and practice affecting children with disabilities, including IDEA 2004 and the Gaskin settlement, call us now at 610.606.5006 oremail us now!

Education Law Advocates, P.C. skillfully represents parents and their special needs children in southeastern and central Pennsylvania, including West Chester, Lower Merion, Coatesville, Paoli, Downingtown and Upper Darby, and throughout the Philadelphia metro area, including Chester County, Montgomery County, Delaware County, Bucks County, Philadelphia, Lancaster County and Berks County.